Couple's challenge shines spotlight on same-sex marriage

January 28, 2005

SANTA ANA, CALIFORNIA — They filed their lawsuit almost as an afterthought. But a legal challenge by a gay couple from suburban Orange County against laws banning same-sex marriage has suddenly become key in the thin field of litigation on the issue.

Christopher Hammer and Arthur Smelt plan to be in U.S. District Court on Thursday as their attorney argues that the federal law, as well as California's Proposition 22, are violations of civil rights akin to slavery or denial of women's right to vote.

California recognizes only marriages between a man and a woman, and the Defense of Marriage Act allows states to disregard gay marriages performed in other states.

At least a few other federal cases are pending, including one in Nebraska and one in Oklahoma, lawyers said. But the hearing comes two days after gay couples in Florida decided to drop similar lawsuits.

"Certainly, eyes are going to be focused on this particular case," said Matthew Staver, president of Liberty Counsel, an opponent of gay marriage involved in some 30 cases nationwide.

Hammer and Smelt's attorney, Richard Gilbert, pursued the case in federal court, even though most cases elsewhere were filed in state courts.

Gilbert said he will appeal if he loses before the federal judge in Santa Ana.

"I'll fight all the way to the United States Supreme Court if these plaintiffs are willing to fight," he said.